Apelação Criminal Nº 0001494-22.2004.404.7012/pr

Penal e Processual. Preliminar. Documentos apresentados na esfera recursal. Possibilidade. Art. 231 do CPP. Intimação da parte ex-adversa. Contraditório e ampla defesa. Resguardo. Art. 337-A, inciso III, do CP. Sonegação de contribuição previdenciária. Crime material. Não comprovação da materialidade. Constituição definitiva do débito. Ausência. Condição de Procedibilidade. Falta de justa causa para ação penal. Atipicidade. Absolvição. Art. 297, § 4º, do Estatuto Repressivo. Falsificação de documento público. Meio necessário para a consecução do delito tributário. Absorção. Princípio da Consunção. Absolvição mantida. 1. Em busca da verdade real e material, salvo restrições legais expressas, não há óbice em se trazer documentos aos autos em qualquer fase do processo, conforme preconiza o art. 231 do CPP, desde que resguardados os princípios do contraditório e da ampla defesa. 2. O crime de sonegação de contribuição previdenciária, previsto no art. 337-A do Código Penal, é delito material ou de resultado. Para configurar sua tipicidade e ensejar eventual persecução penal, exige-se a constituição definitiva do débito fiscal. 3. De acordo com o princípio da consunção, o falsum deve ser absorvido pelo crime tributário. 4. Sendo o delito tributário atípico, a falsidade intentada pelo réu para a supressão/redução das contribuições prividenciárias, também se reveste de atipicidade, pois foi o meio utilizado para a suposta sonegação. Precedentes. Decreto absolutório mantido.

Rel. Des. Élcio Pinheiro De Castro

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